The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

Wednesday, September 20, 2006

A Hatchet Job
Mike Rappaport

The New York Times reviews Richard Posner's new book, Not a Suicide Pact.  The reviewer, Michiko Kakutani, is not pleased with the book.  Unfortunately, much of the review takes the following form: "Can you believe it?  Posner believes X. How outrageous!"  Well, I suppose if you assume your audience agrees with you, that can pass for a persuasive argument. 

I have not read the book, but I have listened to a long podcast Posner gave to Glenn Reynolds and Helen Smith.  Posner had many sensible to things to say.  For example, he had quite interesting ideas about why the criminal law model does not make sense for terrorism.  While others simply assert this conclusion, Posner, as usual, gives reasons. 

One or two times Kakutani actually tries to make an argument, but one soon discovers why she avoids this method of persuasion.  For example, Kakutani writes:

Many of Judge Posner’s arguments in this book are riddled with self-serving contradictions. While he declares that “the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional,” he also argues that “a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.”

I think the only way you can find a contradiction here is to be an extremely uncharitable interpreter of Posner's words.  And Kakatani is exactly that.  But being stingy is not the same as being persuasive.   

When I finally read the book, I probably won't agree with some of what Posner says, and that which I do agree with, I will probably support for different reasons than he does: he makes pragmatic arguments, while I would make originalist ones.  But Posner deserves better than this.

http://rightcoast.typepad.com/rightcoast/2006/09/a_hatchet_job_m.html

| Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bf6e253ef00d834b296dc53ef

Listed below are links to weblogs that reference A Hatchet Job
Mike Rappaport
:

Comments

Well now this was interesting bit by this MICHIKO KAKUTANI person who seems intent on rewritting history: "President Bush secretly authorized the National Security Agency, in search of evidence of terrorist activity, to eavesdrop on Americans without obtaining a court-approved warrant. The administration claimed that the president’s war powers gave him the authority to detain people indefinitely and deny them access to lawyers and the courts — a policy it would later have to modify in response to challenges in the courts. And it pursued a plan to put detainees held at Guantánamo Bay on trial before military commissions, a plan that the Supreme Court in June said violated United States law and the Geneva Conventions"...

Would this person KAKUTANI have said the samething about FDR and his actions during WWII?

Funny thing is KAKUTANI doesn't bother to flesh out the fact that is was the lefties on the Supreme Court that came to the conclusion that this war on terror needed to be fought by committe consensus instead of leadership of the duly elected President and his administration...

Obviously unlike Posner, KAKUTANI's grip on history is more than a bit faulty...

Posted by: juandos | Sep 20, 2006 1:13:13 AM

But. . . isn't this review typical of those in the NYTimes? If the author is on the touchy/feely liberal side shared by the paper, no trash written by them gets anything but raves while any conservative author, even on the top of their own best seller list, is ignored or panned. Another reason to treat the paper like the arm of the leftist Democrat party it is!

Posted by: Kit Winterer | Sep 20, 2006 4:35:55 AM


In writing her review of Posner's book Michiko Kakutani--a winner of the Pulitzer Prize (1998) and daughter of a great mathematician--has showed why after more than 25 years she still is only a NYT reporter.

Posted by: Edgardo | Sep 20, 2006 5:03:26 AM

Instapundit argues that one nice thing about this debate, is it reduces the appeal of the concept of the "living constitution."

For instance, did the NSA wiretapping violate the constitution? Actually no. What it violated was an extra-constitutional right created by the courts. By no logic can you argue that the constitution, written in 1789, had anything at all to say about wiretaps. And I always laugh when liberals attempt to argue that it does. I would say, "really quote the words." Usually they would claim the term "search" counts, and I say, "Ah, so listening is searching. Then I suppose I am searching you right now, right--seeing that I am listening to you?" The argument is crap, which any intellectually honest person must admit.

So, by what logic, can you argue that the bill of rights includes judge-made rights, but those judge made-rights are non-negotiable?

Posted by: A.W. of Freespeech.com | Sep 20, 2006 5:15:35 AM

"Ah, so listening is searching. Then I suppose I am searching you right now, right--seeing that I am listening to you?"

And you think you're making a compelling argument? Listening to someone in a conversation where they are speaking to you is rather different than eavesdropping on them when they are in their home and have not invited you into their home. The first one is not a search, the second one certainly looks akin to a search.

Really, if some liberal walks away in a huff after your argument, it's not because you bested them; it's because you said something so obviously crazy (equating conversational listening to eavesdropping) that they don't want to waste time talking to you anymore.

Posted by: Keith | Sep 20, 2006 6:03:23 AM

"Listening to someone in a conversation where they are speaking to you is rather different than eavesdropping on them when they are in their home and have not invited you into their home."

And what of any third person standing by and listening? Are they searching you?

When you use the telephone, there is at least one third entity involved; the company providing the service.

Posted by: Mark Flacy | Sep 20, 2006 6:36:28 AM

Kakutani is a very smart, sensitive book reviewer. It's sad that when the subject turns to politics, especially Bush's politics, her integrity and sensitivity fly out the window.

A parallel is Times columnist Frank Rich, a marvelous drama reviewer, whose political rants could be written by the worst partisan hack.

Posted by: David | Sep 20, 2006 8:54:01 AM

Oh, the irony. Kakutani writes that

"...the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime."

How is this any different from the "auras, penumbras and emanations" used by the left to redefine that 'living document' known as the Constitution? Liberal judges have discovered all manner of rights not enumerated therein; it's hypocritical to protest when a conservative judge claims the same privilege.

Posted by: Screwtape | Sep 20, 2006 8:59:57 AM

Oh, the irony. Kakutani writes that

"...the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime."

How is this any different from the "auras, penumbras and emanations" used by the left to redefine that 'living document' known as the Constitution? Liberal judges have discovered all manner of rights not enumerated therein; it's hypocritical to protest when a conservative judge claims the same privilege.

Posted by: Paul in NJ | Sep 20, 2006 9:00:45 AM

Interesting -- how'd my comment get posted twice AND attributed to a different poster?

Posted by: Paul in NJ | Sep 20, 2006 9:01:57 AM